Jackson, J., dissenting
the saving clause does not apply. On top of this, given the congruence purpose underlying §2255(e), an individual can resort to habeas via §2255(e) only where the particular claim he seeks to bring would have been cognizable under pre-AEDPA principles.
Thus, the majority has no good answer to interpreting the saving clause as doing what Congress crafted it to do—among other things, ensuring equivalence between §2255 and the prior postconviction remedy being replaced or modified, unless Congress clearly establishes otherwise. A successive statutory innocence claim could have been brought prior to the 1996 addition of §2255(h), and Congress has not clearly foreclosed such claims in the text of §2255. Therefore, the saving clause applies, and Jones should have been permitted to raise his legal innocence claim by filing a habeas petition under §2241.
II
The foregoing analysis assumes, as the majority does, that the only hope of a prisoner in Jones’s position is to assert his statutory innocence claim via a habeas petition filed under §2241 per the saving clause, because §2255(h) prevents the filing of such a successive §2255 motion. But I would not be so quick to assume that a successive §2255 motion asserting statutory innocence is impermissible due to §2255(h). Here is why.
Nothing in the whole of §2255 suggests that Congress ever considered the scenario presented in this case—one in which a prisoner who has already filed a postconviction motion suddenly gets a new claim of legal innocence (after his first petition was filed) based on a development in Supreme Court case law. Therefore, it is not at all clear that Congress determined that such an individual is simply out of luck. Far from making the decision that a prisoner in this circumstance should not be permitted to raise that newly
